432 Mass. 489 | Mass. | 2000
In these cases, we decide whether the provisions of G. L. c. 123A, as amended through St. 1999, c. 74, §§ 3-8,
We also consider whether Bruno’s due process rights were violated by the Commonwealth’s recent attempt to have him committed, where he previously had been evaluated by two psychiatrists who opined that he was not a sexually dangerous person under an earlier version of c. 123A. We conclude that, where Bruno had not been adjudged not sexually dangerous, and where the Commonwealth’s recent commitment petition was not predicated solely on the grounds on which the prior
Last, we consider the propriety of an order committing Wilson to the treatment center for examination and diagnosis for a period not to exceed sixty days. This order was entered by the judge before he allowed Wilson’s motion to dismiss. The judge, after hearing, committed Wilson because he found probable cause existed that Wilson was a sexually dangerous person. The judge then reported his order as well as six questions of law to the Appeals Court pursuant to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), and G.L. c.231, § 111.
We first provide an overview of the statute. On September 10, 1999, the Legislature enacted emergency legislation, St. 1999, c. 74, §§ 3-8, amending c. 123A by providing for the one day to life commitment of a person adjudged a “sexually dangerous person.”
As amended through St. 1999, c. 74, § 6, a “sexually dangerous person” is defined in G. L. c. 123A, § 1, as:
“any person who has been (i) convicted of or adjudicated as a delinquent juvenile or youthful offender by reason of a sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility; (ii) charged with a sexual offense and was determined to be incompetent to stand trial and who suffers from a mental abnormality or personality disorder which makes such person likely to engage in sexual offenses if not confined to a secure facility; or (iii) previously adjudicated as [sexually dangerous] by a court of the commonwealth and whose misconduct in sexual matters*495 indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires.”
Statute 1999, c. 74, § 4, inserted definitions for the terms “[mjental abnormality” and “[pjersonality disorder.” A “[mjental abnormality” is defined as “a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.” G. L. c. 123A, § 1. A “[pjersonality disorder” is defined as “a congenital or acquired physical or mental condition that results in a general lack of power to control sexual impulses.” Id. The definition of the term “sexual offense” identifies various specifically enumerated crimes, including, undisputedly, the crimes of which the defendants were convicted. Id. See note 2, supra.
The new commitment procedures, as applied to persons such as the defendants who have been convicted of a sexual offense, require “[ajny agency with jurisdiction” over such persons, or custodial agency, to “notify in writing the district attorney of the county where the offense occurred and the attorney general six months prior to the release of such person.” G. L. c. 123A, § 12 (a). If the district attorney or Attorney General then “determines that the prisoner ... is likely to be a sexually dangerous person as defined in section 1 [of c. 123A],” either “may file a petition alleging that the prisoner ... is a sexually dangerous person and stating sufficient facts to support such allegations in the superior court.” Id. at § 12 (b).
“Upon the filing of a petition,” the court must “determine whether probable cause exists to believe that the person named in the petition is a sexually dangerous person.” G. L. c. 123A, § 12 (c). Such person is entitled to notice and a hearing, together with the right to be represented by counsel, to present evidence, to cross-examine witnesses, and to view and copy all petitions and reports in the court’s file. Id. at § 12 (c), (d). If the person is scheduled to be released “prior to the court’s probable cause determination, the court, upon a sufficient show
If the court finds probable cause to believe that the person is sexually dangerous, he may be committed “for a period not exceeding [sixty] days for the purpose of examination and diagnosis under the supervision of two qualified examiners.” G. L. c. 123A, § 13 (a). No later than fifteen days before the expiration of the sixty-day examination period, the qualified examiners must “file with the court a written report of the examination and diagnosis and their recommendation of the [person’s] disposition.” Id. The person may retain his own expert, and if indigent, “the court shall provide for such qualified examiner.” Id. at § 13 (d).
Within fourteen days of the filing of the qualified examiners’ reports, the district attorney or Attorney General “may petition the court for a trial ... to determine whether [the] person is a sexually dangerous person.” G. L. c. 123A, § 14 (a). Trial must commence within sixty days from the date that the petition is filed unless good cause is shown or the interests of justice so require. Id. To prepare for trial, the person is entitled to the assistance of counsel and may retain “experts or professional persons to perform an examination on his behalf” and to examine “all relevant medical and psychological records” concerning the person. Id. at § 14 (b). If the person is indigent, the State shall provide him with counsel and experts. Id. If the person intends to use the testimony or report of his qualified examiner, he must file the examiner’s report with the court, and provide the district attorney and Attorney General with a copy, “no later than ten days prior to the scheduled trial.” Id.
During the trial, the person “shall be confined to a secure facility.” G. L. c. 123A, § 14 (a). If the jury unanimously find “beyond a reasonable doubt” that the person is a sexually dangerous person, he will be committed from one day to life, until discharged. Id. at § 14 (d). The effective date of the order of commitment is the person’s “date of discharge, from jail, the house of correction, [or] prison.” Id. If the person is scheduled to be released from jail or prison “at any time prior to the final judgment, the court may temporarily commit such person . . . pending disposition of the petition.” Id. at § 14 (<?).
A person committed under § 14 (d) “shall be entitled to file
Prior to a trial or dispositive hearing, the court “shall order [the committed person] to be examined by two qualified examiners.” G. L. c. 123A, § 9. The examiners are obligated to conduct “examinations, including personal interviews,” of the committed person, and must file written reports of their “examinations and diagnoses, and their recommendations for the [committed person’s] disposition.” Id. If the committed person “without good cause” refuses to be personally interviewed by a qualified examiner, “such person shall be deemed to have waived his right to a hearing on the petition and the petition shall be dismissed upon motion filed by the commonwealth.” Id. “Unless the trier of fact finds that such person remains a sexually dangerous person, it shall order such person to be discharged.” Id.
1. Retroactivity. The defendants maintain that the application of the amended c. 123A to them is unconstitutional because it was triggered by an event, namely, a conviction of a sexual offense, that occurred before its effective date. They assert that the statute may only be applied to persons (unlike themselves) whose convictions of sexual offenses occur on or after the effective date of the 1999 amendments. We disagree because we conclude that the statute operates prospectively.
There is no dispute that the requisite convictions of sexual offenses in these cases occurred before the effective date of the 1999 amendments to c. 123A, and that absent these prior sexual offense convictions, the defendants could not be subjected to potential commitment as sexually dangerous persons. Those facts, however, do not render the statute retroactive. In determining whether a statute operates retroactively or prospectively, the whole statute, and here, the entire definition of the term “sexually dangerous person” as well must be considered. 2 N.J. Singer, Sutherland Statutory Construction § 41.04, at 350 (5th ed. 1993). When the conduct triggering the statute’s application
Here, the conduct triggering the statute’s application is not the prior conviction of a sexual offense, but the current mental condition of a defendant. See G. L. c. 123A, § 1 (definition of “[sjexually dangerous person”); § 12 (b). The focus of the definition of “sexually dangerous person” and the statute’s various sections relating to the procedures governing commitment is a defendant’s current mental condition.
That a person, in addition to possessing the requisite current mental condition, must have been convicted of a sexual offense, only identifies and limits the class of persons subject to potential commitment under c. 123A. “The [Ljegislature may, of course, choose to classify or reclassify a thing, and provided the new definition is applied only to determine status for the purpose of matters arising in the future, the prohibition on retroactive laws is not violated. A law is not made retroactive because it alters the existing classification of a thing. Nor is a law retroactive if it draws upon antecedent facts for its operation.” United States Envtl. Protection Agency v. New Orleans Pub. Serv., Inc., 826 F.2d 361, 365 (5th Cir. 1987). See McCarthy v. Sheriff of Suffolk County, supra. See also 2 N.J. Singer, Sutherland Statutory Construction, supra at § 41.01, at 338 (“a statute is not rendered retroactive merely because the facts upon which its subsequent action depends are drawn from a time antecedent to its effective date”). Because the requisite sexual offense convictions determine only the persons eligible for potential civil commitment, and is not the basis for commitment, the statute is not retroactive in application.
Our conclusion does not contradict the “new consequence” formulation of retroactivity, under which a court must ask “whether the new provision attaches new legal consequences to events completed before its enactment.” Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994). That inquiry is not simply a determination whether the new statutory provision effects an unanticipated consequence, but “a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and
2. Ex post facto law. The defendants argue that various features of c. 123A render the statute punitive in both intent and effect, and thus, an unconstitutional ex post facto law under art. 24 of the Massachusetts Declaration of Rights.
In support of their arguments, the defendants rely principally on the dissenting opinion in Kansas v. Hendricks, 521 U.S. 346, 373 (1997) (Breyer, J., dissenting). There the Supreme Court of the United States reversed the judgment of the Supreme Court of Kansas, and upheld as constitutional the Sexually Violent Predator Act, see Kan. Stat. Ann. §§ 59-29a01 et seq. (1994) (Kansas statute), which contains many provisions similar to those in c. 123A. Id. at 350, 371. The Court considered, among
The defendants acknowledge that only a criminal or penal statute could potentially constitute an ex post facto law. Whether a statute was intended to be criminal or civil depends on the Legislature’s intent, which is a matter of statutory construction. Kansas v. Hendricks, supra at 361. If a statute was intended to be civil, then it is penal “only where a party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Id., quoting United States v. Ward, 448 U.S. 242, 248-249 (1980). See Powers v. Commonwealth, 426 Mass. 534, 537-538 (1998). The defendants fall short of satisfying this high burden.
The Legislature intended the current version of c. 123A, as with former versions, to be remedial. See Commonwealth v. Tate, 424 Mass. 236, 239, cert. denied, 522 U.S. 832 (1997); Hill, petitioner, 422 Mass. 147, 153-154, cert. denied, 519 U.S. 867 (1996); Commonwealth v. Barboza, 387 Mass. 105, 111-112, cert. denied, 459 U.S. 1020 (1982). Statute 1999, c. 74, is entitled “An Act. . . establishing civil commitment” (emphasis added). See Kansas v. Hendricks, supra at 361. Persons committed are committed to a treatment center providing for their “care, custody, treatment and rehabilitation.” G. L. c. 123A, § 2. Further, c. 123A retains its place among public welfare chapters of the General Laws. See Kansas v. Hendricks, supra at 361. The Legislature left intact the statute’s title, “Care, Treatment and Rehabilitation of Sexually Dangerous Persons.” St. 1958, c. 646, § 1. These facets of the statute, together with its stated purpose, “to protect forthwith the vulnerable members of our communities from sexual offenders,” see St. 1999, c. 74, emergency preamble, underscore the dual goals of the amendments, namely, to protect the public from sexually dangerous persons, and to provide them treatment, and rehabilitation. Cf. Commonwealth v. Barboza, supra. Because the Legislature intended to establish a remedial scheme, the statute is deemed “nonpunitive and therefore civil.” Powers v. Commonwealth, supra at 538. See Kansas v. Hendricks, supra at 361.
The statute’s scheme has not been shown to be so punitive in
The three features of the statute on which the defendants rely, when viewed against the entire statutory scheme, do not render the statute punitive. While the dissenting opinion in the Hendricks case opined that the requirement of completion of a sentence prior to commitment under the Kansas statute makes “a legislative scheme . . . look punitive,” it acknowledged a counter-argument that a State “should be permitted to postpone treatment until after punishment in order to make certain that the punishment in fact occurs.” Id. at 381, 386 (Breyer, J., dissenting). Statutory history suggests this concern may be what the Legislature had in mind when enacting St 1999, c. 74, § 8. Under prior versions of c. 123A, a sexually dangerous person would be committed concurrent with serving his sentence, St. 1985, c. 752, § 1, or could, in lieu of serving his sentence, be committed, St. 1958, c. 646, § 1. While the dissent in Kansas v. Hendricks, supra at 386 (Breyer, J., dissenting), rejected the counter-argument, it did so because “[m]uch of the treatment that Kansas offered [in connection with commitment] can be given at the same time as, and in the same place where, [the defendant] serves his punishment.” The Supreme Court did not decide whether the Federal Constitution requires States to offer
That c. 123A does not provide less restrictive alternatives to commitment, such as “postrelease supervision [or] halfway houses,” see Kansas v. Hendricks, supra at 387 (Breyer, J., dissenting), does not render the statute punitive. To the contrary, those persons subjected to confined commitment have been found either to be “likely to engage in sexual offenses if not confined to a secure facility,” or to have “a general lack of power to control . . . sexual impulses . . . and . . . likely to attack or otherwise inflict injury.” G. L. c. 123A, § 1. Thus, because such persons are likely to commit future harm, confined commitment appears to be the only viable form of commitment.
Last, the fact that treatment for committed persons is provided at a treatment center operated under the auspices of the department of correction does not render the commitment penal in nature. We previously rejected such a claim under an earlier different version of the statute. See Commonwealth v. Tate, supra at 238-239. Further, the defendants do not dispute that sexually dangerous persons are kept apart from the criminal population in the treatment center. Nor do they dispute that under the statute they only can remain committed while they possess the requisite mental condition. If the trier of fact finds that a person is no longer sexually dangerous, the department of correction must release that person.
3. Due process. While commitment proceedings under c. 123A are civil proceedings, the potential deprivation of liberty to those persons subjected to these proceedings “mandates that due process protections apply.” Commonwealth v. Travis, 372 Mass. 238, 250 (1977). The defendants argue that temporary commitment of an indeterminate duration pending a probable cause hearing, pursuant to G. L. c. 123A, § 12 (e), violates their substantive due process rights because the temporary
“ ‘ “[Sjubstantive due process” prevents the government from engaging in conduct that “shocks the conscience,” Rochin v. California, 342 U.S. 165, 172 (1952), or interferes with rights “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325-326 (1937).’ United States v. Salerno, 481 U.S. 739, 746 (1987).” Aime v. Commonwealth, 414 Mass. 667, 673 (1993). Where, as here, the right involved, freedom from physical restraint, is “fundamental,” we “ ‘must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation,’ Moore v. East Cleveland, 431 U.S. 494, 499 (1977).” Id. See id. at 674 & n.10. That right “is not absolute.” Kansas v. Hendricks, supra at 356. A State “may impose a regulatory restraint on the individual in narrowly-circumscribed situations.” Aime v. Commonwealth, supra at 677-678. The statute imposing the restraint may be upheld only if it is “narrowly tailored to further a legitimate and compelling governmental interest.” Id. at 673.
The defendants mistakenly argue that under the statute, a district attorney may file a petition to commit anyone who has been convicted of a sexual offense. As previously explained, while such a conviction is required before commitment proceedings may be initiated, commitment proceedings turn on a person’s current mental condition. A district attorney cannot file a petition to commit a person unless it is “likely” that the person possesses the requisite mental condition under the statute. G. L. c. 123A, § 12 (b). This determination must be supported by “sufficient facts,” and not merely averred. Id. A person is not temporarily committed under G. L. c. 123A, § 12 (e), simply on the filing of a petition. Rather, the Commonwealth must make a “sufficient showing” based on “evidence before the court,” that the person named in the petition is sexually dangerous, id., and that the person is likely to commit future
The lack of guidelines to district attorneys does not deprive the defendants of procedural due process. Procedural due process “requires that a statute or governmental action that has survived substantive due process scrutiny be implemented in a fair manner.” Aime v. Commonwealth, supra at 674. The statute provides ample procedural protections to those subjected to potential commitment, and therefore, does not violate the defendants’ procedural due process rights.
4. Bruno’s claim of collateral estoppel. Bruno asserts that the Commonwealth violated his due process rights because it initiated commitment proceedings against him after two psychiatrists previously had concluded that he was not sexually dangerous under a former version of c. 123A. In November, 1981, Bruno was convicted of aggravated rape. In May, 1985, while Bruno was serving his sentence, the superintendent of the Massachusetts Correctional Institution at Norfolk (M.C.I., Norfolk), moved, pursuant to G. L. c. 123A, § 6, to have Bruno committed to the treatment center for a period not to exceed sixty days
Bruno principally relies on Commonwealth v. Travis, supra. Unlike Bruno, Travis had been committed to the treatment center for one day to life. After a hearing on his petition for discharge Travis was adjudged to be no longer sexually dangerous and ordered conditionally released. He was recommitted for breach of the conditions of his release, but not before the judge vacated his earlier finding that Travis was no longer sexually dangerous. Id. at 239, 241. The court concluded that “as a matter of fundamental fairness under the due process clause of the Fourteenth Amendment to the United States Constitution, a finding that an individual is no longer sexually dangerous must be as immune from subsequent or collateral attack as is a criminal judgment of acquittal.” Id. The court, however, limited its holding “only to circumstances in which there has been a finding [pursuant to a § 5 proceeding] that an individual is not sexually dangerous at that particular time and a subsequent or collateral attack is made on that finding as it relates to the individual’s status at the time the finding was made.” Id. at 249 n.5. See Gomes v. Gaughan, 471 F.2d 794, 797 (1st Cir. 1973) (due process issues may arise where person, after having been found or adjudicated not sexually dangerous, and in “absence of intervening misbehavior,” is subjected to subsequent commitment proceeding).
The Commonwealth does not seek to commit Bruno based on the same grounds on which the superintendent relied in 1985. Contrary to Bruno’s assertion that “there has been no ‘interven
5. Questions in reported case. Final judgment entered on Wilson’s motion to dismiss, thus rendering the report moot. See Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 420-421 (1997). However, it is entirely appropriate for us to decide the issues raised by the report as the parties have requested. The issues concern aspects of the statute’s temporary commitment and probable cause hearing procedures on which the statute is silent; are of recurring importance to the administration of justice; and are likely to evade appellate review given the short time periods during which a person may be committed pursuant to these procedures prior to trial. See Mendonza v. Commonwealth, 423 Mass. 771, 777 (1996). See also Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000).
The parties do not challenge the judge’s finding that there was probable cause to believe that “Wilson has pedophilia . . .
(i) Standard of proof for temporary commitment. The first reported question involves the standard of proof required to commit a person temporarily under § 12 (e). The statute merely mentions a “sufficient showing.” The judge ruled that the Commonwealth must meet the probable cause to arrest standard articulated in Jenkins v. Chief Justice of the Dist. Court Dep’t, 416 Mass. 221 (1993). Wilson argues that the judge was correct.
The Commonwealth urges us to adopt the reasonable suspicion standard. That standard justifies only a very brief detention quite different from the temporary, though vastly intrusive, detention permitted under G. L. c. 123A, § 12 (e). See, e.g., Commonwealth v. Blais, 428 Mass. 294, 298 (1998) (officer with reasonable suspicion that person is operating vehicle while under influence may briefly detain person to administer field sobriety tests); Commonwealth v. Barros, 425 Mass. 572, 585 (1997) (officer who detains person on reasonable suspicion may detain for short period, fifteen minutes, to transport person for identification purposes); Commonwealth v. Salerno, 356 Mass. 642, 646-647 (1970) (officer who detains persons on reasonable suspicion may hold them for “expedious collateral inquiry which might result in the suspects’ arrest or prompt release”). The Commonwealth’s reliance on Lamb, petitioner, 368 Mass. 491, 496-500 (1975), is misplaced. The issue there was the culpability of the Commonwealth in bringing a case to trial approximately ten months after a sixty-day observation period concluded with two psychiatrists reporting that Lamb was sexually dangerous. The current § 14 (a) addresses such a situation, which has no bearing on the standard of proof required to commit temporarily a person under § 12 (e).
The loss of liberty that one faces even when temporarily committed is “tantamount to the infringement of being arrested.” Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993) (emergency commitment for fifteen days under New York
The Commonwealth alternatively has asked that we consider applying a “special needs” exception to the probable cause requirement similar to that applied in McCabe v. Life-Line Ambulance Serv., Inc., 77 F.3d 540, 552 (1st Cir.), cert. denied sub nom. McCabe v. Lynn, 519 U.S. 911 (1996). That case is distinguishable. There, a “special needs” exception permitted officers to enter without a warrant the home of a person for the purpose of detaining her pursuant to G. L. c. 123, § 12 (a), after an impartial qualified physician determined her to be dangerous and mentally ill. The issue before the court was not the quantum of proof needed to justify depriving the woman of her liberty, but to justify the warrantless entry onto premises to attend to an emergency situation. Cf. Ahern v. O’Donnell, supra at 817 (where officer seizes person for emergency involuntary commitment under G. L. c. 123, § 12 [a], without expert determination, there must be probable cause to do so). We see no justification for such an exception here. There is no exigency or emergency about the release dates of inmates likely to be the subject of these petitions, except, arguably, during the first few months following the effective date of the statutory amendments. The Commonwealth concedes that the exigency is the lack of time it was given to gather and present all available evidence of sexual dangerousness prior to these inmates’ release dates, although in Wilson’s case it presented some expert evidence at the temporary commitment hearing, and two expert witnesses at the probable cause hearing. The Commonwealth acknowledges that in future cases it should receive six months’ notice of an inmate’s release date and therefore could obtain the necessary evidence and even complete the final commitment hearing before that date. In such cases the order of commitment would not take effect until the inmate’s parole or discharge. See G. L. c. 123A, § 14 (d).
The Commonwealth contends that, because the § 12 (c) hearing is only a preliminary hearing, much the same as a preliminary parole revocation hearing, the arrest standard should apply. See Morrissey v. Brewer, 408 U.S. 471, 485 (1972). The Supreme Court held that the arrest standard should apply to a preliminary parole revocation hearing because it was informal in nature and would be followed by a more formal proceeding before the parole board. Such a hearing must be conducted by some impartial person, not necessarily a judge. At the hearing the parolee must be informed of the nature of the alleged parole violations. He has the tight to present favorable information by bringing letters, documents, or individuals; he may call and question persons who reportedly gave information on which the parole violation is based. Id. at 486-487. Such a hearing is vastly different than the hearing afforded under § 12 (c). The latter includes the right to counsel, the right to confront and cross-examine adverse witnesses, and the right to call witnesses. See G. L. c. 123A, § 12 (d). It is an adversary proceeding conducted in a formal manner before a judge in the Superior Court, not unlike a trial.
Where a statute is silent as to the standard of proof to be applied at a hearing, our determination of which standard shall apply is not made solely on the basis of the status of the hearing. We are guided by due process considerations, including the nature and complexity of the dispute, the competing interests of the parties, the nature of the hearing provided by statute, i.e., whether it is formal or informal, and its place in the over-all statutory scheme. See Morrissey v. Brewer, supra; Jenkins v. Chief Justice of the Dist. Court Dep’t, supra at 245. We have
(ii) Expert evidence at temporary commitment hearing. The second reported question involves the need for expert evidence to commit a person temporarily under § 12 (e). The statute is silent on the question. The judge concluded such evidence is required, and Wilson argues that the judge was correct. The Commonwealth contends that none is required, relying primarily on insanity defense cases, where the question of a defendant’s criminal responsibility may be raised, in some cases, without the need for expert testimony, see Commonwealth v. Mattson, 377 Mass. 638, 644 (1979), and cases cited, and resolved without any expert testimony. See Commonwealth v. Keita, 429 Mass. 843, 847 (1999). The analogy is inapt because the Commonwealth is not aided by the “presumption of sanity” in cases under c. 123A, unlike criminal prosecutions, and it must affirmatively prove that the person has the requisite current mental condition. See id.
The Commonwealth’s burden, as we have said, is the probable cause to arrest standard. “Probable cause to arrest exists when, at the moment of arrest, the facts and circumstances known to the police officers were sufficient to warrant a person of reasonable caution in believing that the defendant had committed or was committing a crime.” Jenkins v. Chief Justice of the Dist. Court Dep’t, supra at 242, quoting Commonwealth v. Gullick, 386 Mass. 278, 283 (1982). See Gerstein v. Pugh, 420 U.S. 103, 111 (1975). Analogizing to this standard, probable
Because a temporary commitment will be sought in circumstances akin to an emergency to hold a person for a short period until a probable cause hearing is held, the expert evidence required for a temporary commitment need not be in the form of live testimony, and need not be extensive, but it must establish probable cause as to those elements of proof. It is not disputed that the Commonwealth met that burden in Wilson’s case. We note that it did so on rather short notice.
(iii) Duration of temporary commitment absent expert evidence. In his third reported question the judge asks how long a temporary commitment may be ordered if the Commonwealth fails to adduce expert evidence. He ruled that such a commitment may only last twenty-four hours. Wilson argues that he was correct. We agree, but caution that even a twenty-four hour commitment can be justified only on a showing that is the equivalent of probable cause to arrest. See Jenkins v. Chief Justice of the Dist. Court Dep’t, supra at 236-238. If a petition for commitment under § 12 (e) is made without expert evidence meeting the requirements of Part 5 (ii), supra, it must be represented to the judge that .such evidence exists, is not immediately available for presentation, but will be forthcoming.
(iv) Duration of temporary commitment. The fourth reported
The judge ordered the probable cause hearing to begin five calendar days after he ordered Wilson’s temporary commitment. The parties agreed to extend that date by one week, and the judge acceded to their request. The probable cause hearing commenced twelve days after the temporary commitment. The second day of trial commenced two weeks later due to scheduling problems for one Commonwealth witness.
Due process is a flexible concept capable of “appropriate accommodation of the competing interests involved” in a case. Lotto v. Commonwealth, 369 Mass. 775, 780 (1976), quoting Goss v. Lopez, 419 U.S. 565, 579 (1975). See Commonwealth v. Durling, 407 Mass. 108, 113 (1990), and cases cited. The probable cause hearing under § 12 (c) and id) is a formal adversary proceeding. It typically involves proof from various sources, including police reports, probation records, mental health records, social worker records, victim statements, prison records, military records, and of course, securing expert testimony on short notice. A prosecutor may have developed a substantial file on a person while preparing a particular case, but the issue of sexual dangerousness involves matters beyond the typical criminal prosecution and of which the prosecutor initially may have been unaware. Materials are often needed from agencies in other cities, counties, or States. Due to the length of a person’s imprisonment, such materials likely will have been placed in a storage facility and not easily retrieved. Although a prosecutor would do well to anticipate bringing a proceeding under c. 123A against a likely candidate by developing the file immediately after prosecution, often that may not be possible. Adequate preparation requires time. There will be considerable demands on both counsel. Defense counsel will also require adequate time to prepare a defense to a probable cause hearing, as the defendant has a substantial interest in his freedom. Society also has a substantial interest, namely, being free from sexual predators (if a defendant is indeed such a person), and seeing that a
We note that a person may be held for ten days under the emergency commitment procedure created by G. L. c. 123, § 12 (a), see Ahern v. O’Donnell, 109 F.3d 809, 817 (1st Cir. 1997). Other courts have cited statutes authorizing temporary commitments of ten days, and longer. See e.g., Luna v. Van Zandt, 554 F. Supp. 68, 71 (S.D. Tex. 1982) (fourteen days); Bension v. Meredith, 455 F. Supp. 662, 669 (D.D.C. 1978) (not to exceed thirty days); Doremus v. Farrell, 407 F. Supp. 509, 515 (D. Neb. 1975) (not to exceed sixty days). The brevity of the twenty-four hour requirement in Jenkins, on which the judge relied, stemmed from our concern that a person was being held on a determination of probable cause made not by a neutral magistrate, but by a police officer. Such was not the case here. Wilson was held on the judge’s order only.
We conclude that absent unusual circumstances, a probable cause hearing should commence no later than ten business days after a temporary commitment order is made under § 12 (e). We again note that the Commonwealth generally expects to be able to complete a probable cause hearing before an inmate’s discharge date in future cases where it will have received the six-month advance notice of discharge provided by § 12 (a).
(v) Expert testimony at probable cause hearing. The fifth reported question involves the need for expert testimony at the probable cause hearing. The judge ruled that it is required. We agree. As discussed at Part 5 (i), supra, this is a formal adversary proceeding, with the right to cross-examine expressly afforded by § 12 (d) (3). The Commonwealth presented two experts at Wilson’s probable cause hearing on short notice. Both experts interviewed Wilson, and both opined that he is a sexually dangerous person. The judge credited their testimony and ordered Wilson committed for sixty days under § 13 (a).
(vi) Segregation of persons committed from persons adjudged sexually dangerous. The sixth reported question asks whether persons committed under §§ 12 (e) and 13 (a) must be held separately from persons adjudged sexually dangerous. The judge ruled that they must be held separately. In his order for commitment the judge directed that Wilson be held apart from persons adjudged sexually dangerous, but also ordered that Wilson receive treatment while held.
6. Conclusion. The orders dismissing the petitions seeking commitment of Bruno, Davila, and Wilson are vacated and the cases are remanded to the Superior Court for further proceedings. Those portions of Wilson’s commitment order directing that he be held separately and that he receive treatment while under observation are vacated; the order for his commitment for sixty days is in all other respects affirmed.
So ordered.
General Laws c. 123A, as amended through St. 1999, c. 74, §§ 3-8, has remained unchanged since the 1999 amendments.
Bruno was scheduled for release on September 21, 1999, after completing a ten-to-twenty-year sentence imposed on November 2, 1981, for aggravated rape. Davila was scheduled for release on October 21, 1999, after completing a two and one-half year sentence for an indictment charging rape, to which he had pleaded guilty on November 10, 1997. Wilson was scheduled for release on October 9, 1999, after completing a six-to-ten-year sentence imposed on November 7, 1990, on his conviction of indecent assault and battery on a child under fourteen years, second and subsequent offense.
The Department of Correction (department) notified the district attorney’s office only three days before Davila’s scheduled release, and just the day before Wilson’s scheduled release. The department could not give the requisite
In addition to allowing Wilson’s motion to dismiss, the judge reported the following questions: “Does G. L. c. 123A apply only to persons convicted of sexual offenses after September 10, 1999?”; [and] “If the answer to [that question] is no, and G. L. c. 123A does apply retroactively to persons convicted of sexual offenses before September 10, 1999, does G. L. c. 123A violate the ex post facto provisions of the United States Constitution, art. 1, [§ ] 10, or [a]rt. 24 of the Massachusetts Declaration of Rights?” In reviewing the appeals from the dismissals in these cases, we resolve the issues posed by these questions, and thus, do not separately answer them. We note that with respect to the second question, although we have not been asked on appeal to decide whether various features of G. L. c. 123A violate the ex post facto clause under the Federal Constitution, because we have “treated the ex post facto provisions within the State and Federal Constitutions in identical fashion,” see Santiago v. Commonwealth, 427 Mass. 298, 301, S.C., 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998), the result would be the same result that we reach under the Massachusetts Declaration of Rights.
The judge might simply have reported the question whether his order finding probable cause was proper. See McStowe v. Bornstein, 377 Mass. 804, 805 n.2 (1979). “Although a judge may report specific questions of law in connection with an interlocutory finding or order, the basic issue to be reported is the correctness of his finding or order. Reported questions need not be answered in this circumstance except to the extent that it is necessary to do so in resolving the basic issue.” Id.
The six questions reported are:
“(1) Is the same probable cause to arrest standard, which is required to be reviewed by a judicial officer within twenty-four (24) hours after a person’s detention, under Jenkins v. Chief Justice of the Dist. Court, 416 Mass. 221, 242 (1993), also applicable when, pursuant to G. L. c. 123A, § 12 (e), a petition is filed requesting an initial, temporary commitment of an alleged Sexually Dangerous Person (SDP) pending the probable cause hearing?
“(2) Is the Commonwealth required to submit forensic evidence in support of the claim that the defendant has a mental abnormality or personality disorder as defined by G. L. c. 123 A, § 1, at the time it files a petition under G. L. c. 123A, § 12 (e) for the initial, temporary commitment of an SDP pending the probable cause hearing?
“(3) If the answer to question two (2) is no, must the Commonwealth provide forensic evidence in support of the claim that the defendant has a mental abnormality or personality disorder as defined by G. L. c. 123A, § 1, at any time before the probable cause hearing, in order to continue to temporarily commit a defendant pursuant to G. L. c. 123A, § 12 (e)?
“(4) If the answer to question three (3) is no, pursuant to G. L. c. 123A, § 12 (e), how long may a person be temporarily committed before a probable cause hearing is held?
“(5) Under G. L. c. 123A, § 13 (a), must the Commonwealth present forensic evidence at the probable cause hearing in support of the claim that the defendant has a mental abnormality or personality disorder, as defined by G. L. c. 123A, § 1?
“(6) Should alleged sexually dangerous persons who are temporarily committed pending their probable cause hearing, and/or after a finding of probable*494 cause, be held separately from persons already adjudicated to be sexually dangerous persons?”
The single justice also ordered these appeals consolidated.
Persons ordered committed pursuant to the provisions of c. 123A are confined to a treatment center, which is an institution established for their “care, custody, treatment and rehabilitation.” G. L. c. 123A, § 2. It is to be maintained by the Commissioner of Correction, subject to the Department of Correction’s jurisdiction. Id.
The sections of c. 123A governing the treatment of persons committed to the treatment center prior to the repeal of G. L. c. 123A, §§ 3-6, and 7, remained in effect. See St. 1990, c. 150, § 104.
The defendants do not argue that the statute violates the prohibition against ex post facto laws under the Federal Constitution. They do argue that the Superior Court judge’s conclusion that the Massachusetts Declaration of Rights provides greater protection against ex post facto legislation by virtue of an amalgam of arts. 10 and 24 should be affirmed. They draw on the dissenting opinion in Kansas v. Hendricks, 521 U.S. 346, 373 (1997) (Breyer, J., dissenting). “Our cases have treated the ex post facto provisions of the State and Federal Constitutions in identical fashion.” Santiago v. Commonwealth, 427 Mass. 298, 301 (1998). These cases provide no reason to depart from that view.
Under the last applicable version of the statute, a person adjudged a “sexually dangerous person” and committed, served his sentence “concurrently with the commitment.” G. L. c. 123A, §§ 5, 9, as appearing in St. 1985, c. 752, § 1 (repealed by St. 1990, c. 150, § 304).
See G. L. c. 123A, § 2, as appearing in St. 1985, c. 752, § 1.
We also reject, for reasons already discussed, the defendants’ conclusory assertion that an analysis of the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), would compel the same conclusion the dissent in Kansas v. Hendricks, 521 U.S. 346, 394 (1997) (Breyer, J., dissenting), reached.
In accordance with G. L. c. 123A, § 6, as amended by St. 1978, c. 478, § 72 (repealed by St. 1990, c. 150, § 304), the superintendent’s motion was accompanied by two reports of a psychiatrist, who concluded that Bruno might be a sexually dangerous person.
Hepatitis is defined as an “[i]nflammation of the liver; usually from a viral infection . . . Stedman’s Medical Dictionary 784 (26th ed. 1995). Hepatitis B is one type of viral hepatitis characterized by “a long incubation period,” and is “usually transmitted by injection of infected blood or blood derivatives or by use of contaminated needles, lancets, or other instruments.” Id. at 785, 786.